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President Donald Trump’s push to end birthright citizenship comes amid a larger push in the closing days of midterm campaign to highlight immigration issues and drive the president's conservative base to the polls. | Andrew Harnik/AP photo

Trump announces plan to end birthright citizenship by executive order

President Donald Trump said Monday that he is planning to sign an executive order that would end the practice of bestowing U.S. citizenship onto babies born in the U.S. to non-citizen parents, a move almost certain to draw legal challenges on constitutional grounds.

In an interview with Axios released Tuesday, Trump said he had discussed the idea with the White House counsel and that “it’s in the process, it will happen, with an executive order.”

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Such an order would seek to override the 14th Amendment, which reads in part: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

Some immigration hardliners have argued that the 14th Amendment is not applicable to those not in the U.S. legally or here only on a temporary visa. Trump, who has long promised to end birthright citizenship, told Axios that instead of amending the Constitution, he has been advised that his administration could end the practice through executive order.

Josh Blackman, a law professor at the South Texas College of Law Houston, said the first question is whether the executive order actually exists or is "just something he’s making up for the midterms.”

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“But assuming it’s a real thing, it will be very surprising why his lawyers signed off on it,” said Blackman, who has written for conservative publications. “There are a lot of issues where legal scholars widely disagree. Birthright citizenship is not one of these areas.”

The move would be sure to ignite legal challenges as to whether Trump has the power to end birthright citizenship, but Trump indicated that the White House has determined he does.

"It was always told to me that you needed a constitutional amendment,” Trump said. “Guess what? You don't."

"You can definitely do it with an act of Congress. But now they're saying I can do it just with an executive order."

The issue of whether birthright citizenship could be applied to children born to non-U.S. citizens was the focus of an 1898 Supreme Court ruling. In U.S. v. Wong Kim Ark, the court held that a man born to Chinese-national parents in the U.S. was in fact a U.S. citizen.

Blackman said it‘s broadly accepted that the phrase “subject to the jurisdiction” of the United States means subject to U.S. laws. However, a small group of legal experts disagree with that view.

John Eastman, a professor at Chapman University and opponent of the longstanding interpretation of the amendment, wrote in a 2015 New York Times op-ed that the phrase “means more than simply being present in the United States.”

Vice President Mike Pence, in a POLITICO Playbook interview on Tuesday, claimed that the White House may, in fact, have the legal standing to challenge automatic birthright citizenship.

“We all cherish the language of the 14th Amendment, but the Supreme Court of the United States has never ruled on whether or not the language of the 14th Amendment, ‘subject to the jurisdiction thereof,’ applies specifically to people who are in the country illegally,” Pence stated.

“One of the things the president articulated on the campaign trail two years ago was that we want to look in the broadest way possible at American law that may be used as a magnet to draw people into our country.”

Pence said that he didn’t want to get ahead of Trump on any policy pronouncements, however. "I’ll leave it to the president to announce whatever actions," he said.

House Speaker Paul Ryan on Tuesday afternoon broke with the White House, rebuffing Trump’s claims that he has the unilateral authority to end the citizenship guarantee and telling a Kentucky talk radio station that you “obviously cannot do that.”

“You cannot end birthright citizenship with an executive order,” he told WVLK on Tuesday afternoon, pointing out that conservatives were equally opposed when former President Barack Obama tried using unilateral power to amend immigration laws.

“As a conservative, I’m a believer in following the plain text of the Constitution, and I think in this case the 14th Amendment is pretty clear, and that would involve a very, very lengthy constitutional process.”

Ryan said that Republicans “obviously totally agree” with the president’s overall goal of cracking down on illegal immigration, but “I believe in interpreting the Constitution as it’s written and that means you can’t do something like this via executive order.”

Asked whether he thought the White House’s interpretation was on sound legal footing, Ryan, who is stepping down from Congress at the end of the current term, said he would consider the argument “legitimate,” but noted that “everyone’s under the jurisprudence of our laws here.”

“What is very clear is you can’t change this via executive fiat,” he said. “At the very least it would have to be statutory through Congress, but I still think a plain reading of the Constitution is fairly clear on this.”

Trump’s push to end birthright citizenship comes amid a larger push by the White House in the closing days of midterm campaign season to highlight immigration issues and drive the president's conservative base to the polls.

Trump has railed against caravans of asylum-seeking migrants traveling from Central America, warning on Monday without offering evidence that there are “Gang Members and some very bad people” mixed in to the group, which he has referred to as an “invasion.”

On Monday, the Pentagon and the Department of Homeland Security announced that more than 5,000 U.S. troops, along with military supplies, including helicopters, would be deployed to the U.S.-Mexico border to brace for the arrival of the caravans, the closest of which is still making its way through southern Mexico.

The administration is mulling other tactics to block the migrants, including threats to cut off aid to countries that don’t impede such caravans, and an executive order and regulatory action that would place restrictions on the migrants’ ability to apply for asylum once they reach the U.S.

"We're the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits," Trump told Axios. "It's ridiculous. It's ridiculous. And it has to end."

Trump's claim that the United States is the only country the world that practices automatic citizenship for those born within a nation's borders is inaccurate — according to the CIA World Factbook, 38 other countries around the globe also have birthright citizenship, including Canada, Mexico, Argentina and Uruguay.

Some of Trump’s backers in Congress on Tuesday cheered his announcement, even while hinting that he may not have the unilateral authority that he claimed.

“Finally, a president willing to take on this absurd policy of birthright citizenship,” Sen. Lindsey Graham (R-S.C.) tweeted.

“I’ve always supported comprehensive immigration reform – and at the same time – the elimination of birthright citizenship,” he wrote in a second tweet, adding in a subsequent tweet that he planned to introduce legislation “along the same lines” as Trump’s proposed executive order.

“The United States is one of two developed countries in the world who grant citizenship based on location of birth. This policy is a magnet for illegal immigration, out of the mainstream of the developed world, and needs to come to an end,” Graham said, likely referring to the U.S. and Canada, though Ireland also grants birthright citizenship and is on the International Monetary Fund’s list of advanced economies.

House Majority Whip Steve Scalise also applauded Trump’s move, calling it one way the White House is working to “close the loopholes” in immigration law.

“The president is exploring the legal options to do this through executive action. I’d like to see us get back to rule of law, secure our border,” the Louisiana Republican said Tuesday in an interview on Fox News.

“I'm glad the president is pursuing all the options that are available to him. Congress needs to continue to pursue all of our actions,” he added later.

Others slammed the proposal, as well as questioned its constitutionality.

The ACLU said in a tweet that the suggestion of ending a citizenship guarantee for babies born in the U.S. “is a blatantly unconstitutional attempt to fan the flames of anti-immigrant hatred in the days ahead of the midterms,” adding that “the 14th Amendment’s citizenship guarantee is clear. You can’t erase the Constitution with an executive order, @realDonaldTrump.”

Alfonso Aguilar, president of the Latino Partnership for Conservative Principles and the first chief of DHS’ Office of Citizenship under President George W. Bush, also slammed the proposal. “One of the things that makes America exceptional is that anyone born here, regardless of blood, religion or how their parents arrived to US, is a US Citizen” he tweeted. “14th Amendment enshrines this & SCOTUS has recognized it since 19th century!”

Retiring Rep. Ryan Costello (R-Penn.) also had harsh words for Trump. "We all know challenges of suburban R’s. The bloc of competitive R held districts less impacted by POTUS thus far are those w high # of immigrants," Costello tweeted. "So now POTUS, out of nowhere, brings birthright citizenship up. Besides being basic tenet of America, it’s political malpractice."